Federal Sentencing - Adjustment Flashcards
Vulnerable Victims
What makes a victim “unusually vulnerable”?
age, physical or mental condition, or particularly susceptible to criminal conduct
SG 3A1.1
It doesn’t have to play a part in the offense
Vulnerable Victims
What is the adjustment for “unusually vulnerable” victim?
If D “knew or should have known” +2 levels
If D “intentionally selected” +3 levels
If offense included “large number” of vics. +2 additional levels
Vulnerable Victims
Does the victims “vulnerability” need to play a role in the offense?
NO. Just needs to be “reasonably foreseeable” to the D
Hated Victims
What characteristics for this enhancement?
beyond a reasonable doubt “actual or perceived” race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation
SG 3A1.1
Hated Victims AND Vulnerable Victims
CUMMULATIVE if victim is vulnerable for another reason than the reason for being hated
Hated Victims Selected
What’s the adjustment?
3 levels
Hated Victims
Gender selection and “sex crimes”?
Cannot adjust for both
Official Victims
What does the Gov’t have to prove for this adjustment?
“crime was motivated by status” as official (gov. official, former official, or immediate family member of official)
SG 3A1.2
Official Victims
What adjustment is there for official victim?
+ 3 levels UNLESS
+ 6 for “Offense Against the Person” or substantial risk of SBI
Is Official Victims adjustment for Official organizations?
NO, for persons
Physical Restraint of Victim
+ 2 levels
UNLESS restraint was an element of offense
Need not actually be the “VICTIM” of the offense
Even lawful restraint!!
SG 3A1.3
What is a “federal crime of terrorism”?
Offense “calculated to influence or affect the conduct of the government by intimidation or coercion, or to retaliate against government conduct; and” is one of certain enumerated offenses such as attacks on airports, gov. officials, gov. property, and use of nuclear, bio, and chemical weapons
18 USC 2332
What is the “International Terrorism” adjustment?
+ 12 levels
minimum level of 32
What is a “serious human rights violation”?
means a violation of federal criminal law relating to genocide, torture, war crimes, and the use of recruitment of child soldiers”
SG 3A1.4 note 1
What is the “serious human rights violation” adjustment?
2 and 4 level depending on seriousness
3A1.4
Role in Offense - Aggravating
What are the “leadership roles”?
Organizer or leader
Manager or Supervisor
Role in Offense - Aggravating
What kind of activity does “leadership roles” apply to?
D was an “organizer or leader of criminal activity that involved 5 or more participants or was otherwise extensive.”
Role in Offense - Aggravating
What is the adjustment for “organizer or leader”?
(5 or more participants or extensive activity)
+ 5 levels
Role in Offense - Aggravating
What is the adjustment for “manager or supervisor”?
(5 or more participants or extensive activity)
+ 3 levels
Role in Offense - Aggravating
What factors do you consider in determining “Roles”?
- Decision making authority;
- Nature of participation;
- Recruitment of accomplices;
- Share of “fruits” of crime;
- Scope of illegal activity;
- Degree of participation or planning;
- Degree of control over others
Role in Offense - Aggravating
What must government prove?
- Requisite number of participants (only criminally responsible actors are considered “participants”)
- Actually that D is “leader”
- Role must be “anchored” in transaction of conviction
- D only need to supervise ONE (not 5)
Role in Offense - Mitigating
What are the “mitigating” roles called?
“minimal participant” - plainly least culpable
“minor participant” - less culpable, but not minimal
Role in Offense - Mitigating
What is the adjustment for the “mitigating” roles?
“minimal participant” (plainly least culpable) - 4
“minor participant” (less culpable, but not minimal) - 2
Role in Offense - Aggravating
How does it interplay with “Abuse of Position or Skill”?
Role + Abuse of Trust = OK
Role + Abuse of Skill = NO
Abuse of Position or Skill
What is the adjustment for “abuse of position or skill”?
+ 2 levels
Abuse of Position or Skill
What must happen?
D must abuse SPECIAL trust or skill
Abuse of Position
What is the 5th Cir. TEST?
Two part:
- Occupied superior position relative to others;
- Abused that position to “significantly facilitate offense”
Abuse of Position
Through a third party?
+2 applies still
Abuse of Skill
What constitutes a “skill”?
“skill not possessed by general public and usually requiring substantial education, training, or licensing”
Abuse of Skill
What must the Gov’t prove?
- “skill not possessed by general public and usually requiring substantial education, training, or licensing”
- Skill used to facilitate offense
Insider Trading - Abuse of ________?
Abuse of TRUST - 2012 Amendment
Use of Minor
What is the adjustment?
+2 levels
Use of Minor
What must the Gov’t show?
- D took some “affirmative step” to involve minor;
2. OR minor’s participation was reasonable foreseeable
Obstruction of Justice
What is the definition of “obstructing justice”?
D “willfully impeded or obstructed the administration of justice during the investigation or prosecution of the instant offense.”
Obstruction of Justice
What is the adjustment for “obstructing justice”?
+ 2 levels
Obstruction of Justice
What should the CRT do about “obstruction of justice” adjustment based on FALSE information/testimony?
Make a specific finding about WILLFULNESS and MATERIALITY
D should object to the adjustment
Obstruction of Justice
What are some common examples of “false information” obstruction?
- Perjury
- Lying in presentence interview
- Giving false name (if SIGNIFICANTLY interfers)
Obstruction of Justice
When does false information obstruction apply?
Pretrial AND trial
Obstruction of Justice
What are common types of obstruction?
- False information;
- Threats
- Destruction of Evidence
Obstruction of Justice
What doesn’t amount to obstruction, by itself?
Flight along does not constitute obstruction
BEWARE +2 for reckless risk of death or SBI
Obstruction of Justice
Does obstruction adjustment apply to “accessories afte the fact?
No.
Obstruction of Justice
What if D commits new crime while on release?
+3 and sentences must be consecutive
Grouping
What is “grouping”?
It’s combining offenses into a single count under SG 3D1
Grouping
How do you determine offense level of grouped offenses?
You use the highest level in the Group, and then use chart in 3D1.4 1 unit = no increase 1.5 units = 1 level increase 2 units = 2 level increase 3.5 - 3 units = 3 levels 3.5 - 5 = 4 levels More than 5 = 5 levels
Grouping
How do you determine “Units”?
SG 3D1.3
One Unit is the most serious
Next, add a unit that equally serious or from 1 - 4 levels less serious
Next, add a 1/2 unit for offenses that are 5 - 8 levels less serious
If 9 levels less serious, don’t add a unit
Grouping
How do you determine which counts should be grouped?
Group:
- same victim and same act or transaction
- same victim and two or more acts, but connected by common objective or plan or scheme
- When count embodies conduct that is treated as an adjustment of another count
- If offense level determined by aggregate harm or loss, or quantity OR guideline provides for ongoing behavior - (Add them all up)
Acceptance of Responsibility Adjustment
What is the adjustment?
- 2 levels if D clearly demonstrates acceptance of responsibility
Another -1 if the offense level is 16 or greater, and the Gov’t moves for an adjustment based on D assistance in investigating or prosecuting his own case, D communicated his intention to plea guilty before the Gov’t had to prepare for trial
Acceptance of Responsibility Adjustment
What does the CRT determine?
That D expresses sincere contrition
Acceptance of Responsibility Adjustment
Relevant conduct?
D cannot FALSELY deny relevant conduct
Acceptance of Responsibility Adjustment
Uncharged conduct?
Although, D cannot FALSELY deny relevant conduct, D need not admit to uncharged conduct
Acceptance of Responsibility Adjustment
Does a guilty plea raise a presumption of “Acceptance of Responsibility Adjustment”?
No, and evidence of conduct that is inconsistent with acceptance of responsibility may outweigh the plea.
Acceptance of Responsibility Adjustment
What must the D accept?
ALL elements of the charged offense, and not falsely deny relevant conduct
Acceptance of Responsibility Adjustment
Can the Gov’t condition their motion for adjustment on waiving appeal?
Yes. In the 5th Cir., but some others say NO
Acceptance of Responsibility Adjustment
Can a D get this after trial?
RARELY. There is a balance between punishing the D for exercising right to trial.
Very unlikely that court will grant the 2 levels.
Acceptance of Responsibility Adjustment
When is the adjustment made?
After computation of all Groups is combined.
Acceptance of Responsibility Adjustment
Can a D with “obstruction of justice” adjustment get this?
Only in “extraordinary circumstances”
Acceptance of Responsibility Adjustment
Are rehabilitative measures required?
No. Good idea, but not required. And using drugs on bond, doesn’t necessarily mean you lose it.
